This week’s top three summaries: R v Hartling, 2020 ONCA 243, R v Simon, 2020 NSCA 25, and R v Broderick, 2020 ONSC 2080
R v Hartling (ONCA)
[April 3, 2020] Charter s.11(b) - Post-Conviction Delay in Gladue Report - Kienapple Error in Breach Charges - 2020 ONCA 243 [Reasons by Benotto J.A. with Paciocco and Thorburn JJ.A. concurring]
AUTHOR’S NOTE: The ONCA has finally put some flesh on the bones of post-conviction delay established in R v Charley. Here, a 14-month delay in the preparation of a Gladue report for sentencing caused a 5-month discount in the sentence. Counsel can now start pegging their submissions to numbers given for comparable delay problems. Also, in this decision the ONCA stayed a breach of the peace on a probation order because it depended on the same evidence as another breach sustained by the trial judge. A good reminder that Kienapple applies to breaches as well.
Pertinent Facts
[2] The son was convicted of aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody.
[5] On March 8, 2012, the appellant, Gordon Hartling was visiting his mother, Sharon Hartling who was at home with her then-boyfriend Francis Gill. At the time, the appellant was 41 years old, Ms Hartling was 64 and Mr. Gill was 62. All three were sitting in the living room drinking several bottles of sherry and becoming intoxicated. An argument began and erupted into violence.
The Kienapple Error
[68] The trial judge convicted the appellant on two counts of breach of probation: one related to his consumption of alcohol; the other the requirement to keep the peace and be of good behaviour. On the first count it was clear that he breached his probation by consuming alcohol. But the trial judge said that by consuming alcohol he was also not “being of good behaviour” so he breached that condition as well. The trial judge did not rely on any other conduct for the second count.
[69] In my view, the second charge should have been stayed because the trial judge relied on the same conduct to ground both charges.
[70] The Crown agrees that the trial judge erred but submits that the curative proviso should be applied to the second count because there was other conduct that clearly violated the terms of the probation order. I do not agree. While the appellant committed numerous offences that could ground the second breach, I would not apply the proviso. The trial judge specificall y relied on the consumption of alcohol to ground the second count. I am unable to say whether, but for the Kienapple error, he would have found the appellant guilty of the second count.
Post Conviction Delay
[96] The post-verdict delay is another matter. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report.
[97] Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. At the time – as difficult to understand as it seems – there was only one Gladue writer in the Algoma district. There were no Gladue writers provided by Aboriginal Legal Services in the Algoma district. Therefore, there were only two options: (a) paying privately out of pocket; or (b) obtaining Legal Aid funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately.
[98] The issue of post-verdict delay was addressed by this court in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, where a presumptive ceiling of five months was set for the time from verdict to sentence. At paras. 86 and 87, Doherty J.A. explained:
In fixing a presumptive ceiling, I bear in mind that the presumptive ceiling is not intended to identify the amount of time it should take to move the case from verdict to sentence. As stated by the majority in Jordan, at para. 56:
We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.
I would set the presumptive ceiling for post-verdict delay at five months. In doing so, I stress that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay.
[99] Five months is the point at which post-verdict delay to sentence becomes presumptively unreasonable. Fourteen months is nearly three times the delay. So the burden now shifts to the Crown to justify the delay.
[102] I do not agree that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.
[108] These qualifications do not apply here. There was no reasonable reliance on the appropriateness of the long delay. The delay was not a result of a “change [that] takes time” to implement. R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, was decided in 1999. Before the release of Charley, it could not be said that a 14-month delay was acceptable. Nor can it be said that the parties would have been reasonable to rely on the previous state of the law. A 14-month delay was unreasonable then, and it is now.
[110] This brings me to remedy.
[111] Although no post-verdict delay was found in Charley, this court discussed the remedy when a post-conviction breach is found. When the breach is pre-verdict, a stay is the only available remedy. Post-verdict is different.
[117] The process of sentencing is highly individualized with reference to the offender. It also involves discretion on the part of the sentencing judge particularly when a sentence is reduced to reflect relevant mitigating circumstances. One such mitigating circumstance is delay from conviction to sentence.
[119] Delay in sentencing that breaches an offender’s Charter rights should also be considered a mitigating circumstance. But it is one that should result in more than standard mitigation; it should result in enhanced mitigation. This would meet the objectives and principles of sentencing codified in s. 718 of the Criminal Code while also providing a meaningful remedy for the Charter breach.
[120] Delay was not considered when the appellant was sentenced to 30 months incarceration. The delay which led to a Charter breach is a circumstance giving rise to enhanced mitigation.
[121] I conclude that the appellant is entitled to enhanced mitigation to reduce the sentence.
[122] As with mitigating circumstances generally, there can be no automatic or formulaic calculation of the reduction in sentence. Nor can a firm principle be established based on one case. The jurisprudence will – as always – develop with each case determined on its own particular facts, considering the offence, the offender, the length of the delay, the circumstances of the delay and any other relevant factors. Here, the offence was serious. The appellant did nothing to contribute to the delay. The delay was caused by a failure to provide adequate services to a vulnerable segment of society. The appellant was required to wait over a year to have his future determined. These are serious factors which caused a significant Charter breach.
[123] In the circumstances here, I would reduce the sentence by five months.
Conclusion
[124] I would dismiss the conviction appeal, stay the second breach of probation charge, and allow the sentence appeal in part by reducing the sentence by five months.
R v Simon (NSCA)
[March 12, 2020] Charter s.9/8 - Insufficiency of Confidential Informant information and corroboration by police - 2020 NSCA 25 [Reasons by Farrar, J.A. with Hamilton and Bryson, JJ.A. concurring.]
AUTHOR’S NOTE: This case highlights the importance of CI information in an ITO not being "conclusory". Further, where that is the case, the police are expected to do more than corroborate the non-criminal details of the information. Things that could be known by anyone that did not have direct knowledge of the criminal activity are less important on the corroboration factor outlined in Debot. Here, on the Debot factors of credible, compelling, and corroborated, the police failed on all counts. The credibility of the informant was not clearly articulated: particularly their past success rate. The information was conclusory and therefore not compelling. Finally, the police did no surveillance to observe drug-dealing behaviour.
Pertinent Facts
[1] On August 30, 2017, the police stopped the vehicle of the respondent, Sean Simon in Port Hastings, Nova Scotia and arrested him for possession for the purpose of trafficking. The officer proceeded to search Mr. Simon’s vehicle incident to the arrest, and located 13 Dexedrine capsules and one codeine pill in a container in the back of his vehicle. After the stop and search, the police prepared an Information to Obtain a Search Warrant (ITO) for the appellant’s residence.
[2] A warrant was issued and executed. The attending officers did not locate any illegal drugs in the Simon home. They did locate a cash counter in a box wrapped in black plastic and two scales in the rafters of the garage.
[4] The matter was heard before Justice Frank C. Edwards. By decision dated February 26, 2019 (reported as 2019 NSSC 69) he determined the arrest was unlawful and, therefore, the search incidental to arrest was also unlawful.
[5] He also determined that the search warrant for Mr. Simon’s home should not have been issued based on the information in the ITO.
[6] Finally, pursuant to s. 24(2) of the Charter, he excluded all the evidence seized.
Charter: Section 9
[13] The leading case on the meaning of “reasonable and probable grounds” is Storrey. Justice Cory provides a summary at pp. 250-251:
In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
“Reasonable and probable grounds” also means “credibly-based probability” (R. v. Holmes, 2019 BCCA 138, ¶41; R. v. Dhillon, 2016 ONCA 308, ¶25).
[14] Where an officer’s reasonable and probable grounds were based on confidential information, the leading cases are R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 and R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. While Debot and Garofoli did not deal with grounds to arrest, but rather to search, they are consistently applied in the arrest context when tips are involved – especially Debot (see R. v. LeBlanc, 2009 NSSC 99, ¶57; Dhillon, ¶30).
[15] In Debot, Justice Wilson, (concurred with by the majority on this issue) explained whether there were reasonable and probable grounds must be assessed from the “totality of the circumstances”, having specific regard to whether the information was compelling, credible, and corroborated:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. (Pg. 1168)[Emphasis added]
[16] Justice Wilson found each detail provided by the confidential informant need not be confirmed “so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence”. Further, that “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater” (Debot, p. 1172).
[17] In Garofoli, Sopinka J. identified the following principles from Debot and R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances." There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors, including:
(a) the degree of detail of the "tip"; (b) the informer's source of knowledge; and (c) indicia of the informer's reliability, such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. (pp. 1456-1457)
[18] If there are no reasonable and probable grounds to arrest, then the arrest is unlawful, and any ensuing search is not a search incidental to a lawful arrest (R. v. Quilop, 2017 ABCA 70, ¶35; LeBlanc, ¶77).
Application
[20]....However, the testimony of Corporal Kuchta was that the information contained in the ITO was also the basis upon which he formed the grounds for arresting Mr. Simon without a warrant. In other words, the information in the ITO was also intended to establish that there were reasonable grounds to believe Mr. Simon had committed or was about to commit an indictable offence while driving in Port Hastings.
[22] Therefore, to assess whether the trial judge erred in his finding the arrest (and corresponding search) was unlawful, it is necessary to look at the ITO in some detail. Under the heading “Grounds for Belief”, the ITO provides: ...
12. On February 22, 2017 I performed a traffic stop on Sean SIMON’s grey 2007 Hyundai Tucson vehicle; …
13. On February 23, 2017 Sean SIMON entered into a Recognizance before a Judge, Judge Alain J. BEGIN, Order #1953480 with conditions;
13.1 Keep the peace and be of good behavior;
13.2 Reside at 16 Oak Crescent, Port Hawkesbury, NS;
13.3 Not possess or consume illicit drugs or prescription drugs without a valid prescription;
14. On May, 2017 Cpl KUCHTA spoke to Source “B” and learned the following information;
14.1 Sean SIMON is selling cocaine;
14.2 Sean SIMON is driving a grey Hyundai SUV;
14.3 Source “B” knows this from speaking to Sean SIMON in the past 12 hours;
15. On August 10, 2017 Cpl KUCHTA spoke to Source “A” and learned the following information;
15.1 Sean SIMON is selling cocaine in Port Hawkesbury by the gram;
15.2 Sean SIMON is getting his cocaine from Sylvain LANDRY;
15.3 Source “A” knows this from speaking to Sean SIMON in the past 12 hours;
16. On August 19, 2017 Cpl KUCHTA spoke to Source “A” and learned the following information;
16.1 Steve MACEACHERN is supplying Sean SIMON with cocaine;
16.2 Sean SIMON is selling cocaine by the gram and multi gram;
16.3 Source “A” knows this from speaking to Sean SIMON in the last 6 hours;
17. On August 28, 2017 Cpl KUCHTA spoke to Source “B” and learned the following information;
17.1 Sean SIMON is selling cocaine and prescription pills;
17.2 Sean SIMON lives at 16 Oak Crescent, Port Hawkesbury, Nova Scotia;
17.3 Sean SIMON stores most of his cocaine and pills in his house, shed or garage;
17.4 Source “B” knows this information from speaking to Sean SIMON in the past 12 hours;
18. On August 30, 2017 Cpl KUCHTA spoke to Source “A” and learned the following information;
18.1 Sean SIMON has a quantity of dexies which he is selling;
18.2 Source “A” knows this from speaking to Sean SIMON in the past 6 hours; (From my experience as a police officer I know “dexies” to be the street term for the prescription drug Dexedrine)
Was the information compelling?
[26] No other details were given. Corporal Kuchta testified that neither source stated the respondent was selling out of his vehicle or at his workplace. Neither provided details in terms of how the respondent was selling (for what price, the manner in which he was conducting the sales or the specific location of the drug deals). Only Source "A" stated the units in which he was selling cocaine, and this was a different drug than the one he identified on August 30, 2017 (the day of the arrest).
[27] In addition to specificity, the source of the informant’s knowledge is relevant to assessing how compelling the information is (R. v. Chioros, 2019 ONCA 388, ¶19).
[28] The trial judge took issue with the source of the informant’s knowledge and appears to have discounted the source of the information entirely (2019 NSSC 69, ¶28-37). The ITO in ¶14-18 deals with the issue of Source "A" and "B"’s reliability and uses the following phrase in all five paragraphs: “Source "A" [or "B"] knows this from speaking to Sean SIMON in the last 6 [or 12] hours” (2019 NSSC 69, ¶28-37). While I agree this phrase could have been more specific or, better yet, that the officer should have clarified the purported source of the informants’ knowledge, I disagree that it should be discounted entirely. This phrase indicates the informants personally knew the respondent and that they gained this knowledge as a result of statements he made, rather than hearing it elsewhere. This helps alleviate concerns about perpetuating rumours (Dhillon, ¶35).
[29] That said, I would not describe the information provided as compelling. While the assertions were more detailed than the information at issue in LeBlanc, the lack of detail in the ITO renders the assertions of criminal conduct mere conclusory statements (ITO ¶14-18).
Were the confidential sources credible and reliable?
[31] In my view, the record does not support a finding that the informants were credible and reliable. Although the tips were not anonymous and neither informant had a criminal record for public mischief or perjury (ITO, ¶9-10), there were, as the trial judge noted (2019 NSSC 69, ¶15-19, 21-24), minimal if any objective indicators of their credibility and reliability.
[32] Corporal Kuchta’s testimony that the informants had previously provided information multiple times, once leading to a charge, reveals—without more detail—little, if anything, about the informants’ credibility or reliability.
[33] This case differs in this respect from those such as R. v. Spence, 2011 BCCA 280 and R. v. Whyte, 2011 ONCA 24 where the informant, in both cases, had provided information that led to significant seizures of contraband and, in Spence, to six arrests. The courts in Spence and Whyte were also given the specifics of those arrests and seizures.
Was the information corroborated?
[35] The only information the police corroborated was the respondent’s name, address, what car he drove, his plate number, and his being in the Port Hawkesbury area on August 30, 2017. While the respondent was known to the police and had a criminal record (ITO, ¶19), there was no information before the court as to whether the respondent’s criminal record included drug-related offences. It was also clarified on the Charter motion that the other time the police had stopped the respondent resulted in cocaine being found on a passenger in his car—not in the respondent’s possession (2019 NSSC 69, ¶39). Corporal Kuchta testified that the charges against Mr. Simon relating to that stop were withdrawn.
[36] Given the weaknesses of the first two factors, it is significant that the police did not see the respondent engage in any criminal or suspicious activity in the slightest, nor did they see him with either of the two alleged cocaine suppliers. Police surveillance merely involved: driving by the respondent’s workplace, Island Concrete, located on Highway 105 on August 30, 2017; seeing the respondent’s vehicle at his workplace; waiting for an hour or two at the rotary near Highway 105; and seeing the respondent enter the rotary at 5:11 p.m. that day. Nothing suspicious or criminal was observed before pulling the respondent over, arresting him for possession for the purposes of trafficking, and searching him incident to that arrest.
[38] While confirmation of criminal activity or suspicious circumstances is not necessary in all cases, in my view, such confirmation was necessary here in light of the fact that the informants had not been proven reliable nor credible and the information provided was not sufficiently detailed to be considered compelling.
[39] There was, therefore, no meaningful corroboration given that most of the confirmed information is readily available public information (Chioros, ¶19) and given that the respondent worked in the Port Hawkesbury area and presumably would be found there most days.
[40] Applying the Debot test, in my view, the totality of the circumstances falls short of establishing reasonable and probable grounds to arrest. The absence of detail, of any way to adequately assess the informants’ credibility or reliability, and of any meaningful corroboration merely support, at most, a suspicion of drug trafficking. As such, it was insufficient as found by the trial judge.
Section 24(2) - Application
[42] The trial judge identified the factors to be considered under s. 24(2) of the Charter (R. v. Grant, 2009 SCC 32) and balanced those factors in excluding the evidence. ...:
1. The seriousness of the Charter-infringing state conduct:
[48] Here the Charter infringing conduct was the Applicant's unlawful arrest and detention contrary to s. 9 of the Charter. The search incidental to the unlawful arrest would therefore violate s. 8 of the Charter. The police were acting without a warrant on the basis of very questionable source information. I would consider this to be a serious Charter breach which tips the scale toward inadmissibility of the evidence.
2. The impact of the breach on the Charter-protected interests of Applicant:
The Applicant had an expectation that he would not be subject to arbitrary arrest and detention. He had the right to drive from his place of employment to his home without the prospect of police interference. Though the expectation of privacy is not as great with one’s vehicle as with one’s home, it still exists. There was a significant impact on the Charter protected privacy interests of the Applicant. The weight is decidedly toward inadmissibility.
[51] In this case, police conduct was so unjustified that the Court should not in any way condone it. The long-term repute of the administration of justice demands that the Courts be vigilant in ensuring that police only interfere with citizens’ rights when they have demonstrable appropriate grounds to do so. I would therefore exclude the evidence of the search incident to the Applicant’s unlawful arrest.
[43] I can see no error in his identification of the factors to be considered and his balancing of them. I would also dismiss this ground of appeal.
R v Broderick (ONSC)
[April 4, 2020] – Possession of Drugs - Bags in Airport – 2020 ONSC 2080 [D.E. Harris J.]
AUTHOR’S NOTE: :"Left holding the bag" usually expresses the state of evidence against an accused caught with drugs at the airport. Few arguments fly in the face of personal possession of large quantities of narcotics at a border crossing. Herein, one such argument was successful. This case shows how important it is to trace the entire transit of the bag from the moment it leaves Canada until the moment it comes back.
Pertinent Facts
[1] Darryl Broderick arrived at secondary inspection at Toronto’s Pearson International Airport on March 12, 2012. He had flown in on a flight from St. Lucia in the Caribbean. A Border Services Officer (BSO), being suspicious of his bag, x-rayed it. A false compartment was apparent which was ultimately found to house 1.44 kilograms of cocaine.
[3] The decisive piece of evidence which led to the acquittal was a yellow carbon copy Westjet mishandled baggage form found in Mr. Broderick’s checked bag, the same bag in which the cocaine in the hidden compartment was found. Ms. Taggart for the Crown fairly conceded that it appeared that this was a genuine document.
[4] The form was dated the day of Mr. Broderick’s flight into St. Lucia, March 8, 2012. His name, his mother’s address, and his phone number, email and booking reference number were included. Under the baggage information, a general list of items was written, including clothing, shoes, toiletries, glasses and jewelry. There were several different types of longhand writing on the form.
[5] In his evidence, Mr. Broderick clarified the nature of the document, which, in any case, was quite clear on its face. After disembarking in St. Lucia, his bag did not come out with the other passengers’ bags. He reported it missing and this form was filled out.Some of the writing on the form was his. Some was not, like the general items contained in the bag. He signed the form. He received the carbon copy which was found in his checked luggage.
[6] There were several phone numbers recorded on Mr. Broderick’s cellphone which I am satisfied were Westjet numbers and the St. Lucia airport phone numbers. Mr. Broderick testified that he had used his cellphone to inquire about his lost bag. Finally, two days after the bag was lost, on March 10, 2012, Mr. Broderick received a call that the bag had been found. He went to the airport after hours. A man was standing outside in the dark with the bag. This appeared unusually informal, even for a small airport, but not much can be drawn from it.
[7] The mishandled baggage document demonstrated to some degree of certainty that Mr. Broderick’s bag was lost upon his arrival. It is an available reasonable inference that some person or persons unknown, constructed the professionally designed hidden compartment and placed the drugs in it during the time the bag was out of Mr. Broderick’s possession.
[11] In Mr. Broderick’s evidence, it was implied that Ricky, in league with Mark Agar, could have been behind the secreting of the drugs in the checked bag. Mark would be able to retrieve the drugs from the closet in the basement of their residence where the bag would be returned after the trip.
[13] The Crown made a third party suspect application to investigate Ricky Nelson and Mark Agar. The trial was adjourned for this purpose.
[14] After returning from this adjournment granted, the Crown had no additional evidence to lead in reply. The Crown, however, had disclosed to the defence Mark Agar’s criminal record. It included three convictions for drug trafficking, the most recent from 2006. This added plausibility to the defence implication that Mark Agar and Ricky Nelson had planted drugs, unbeknownst to Mr. Broderick, in the suitcase during the time it was missing in St. Lucia.
Propensity Evidence
[16] Ms. Taggart for the Crown argued that Mr. Broderick’s criminal record could be used for more than the credibility purpose authorized by Section 12 of the Canada Evidence Act and discussed in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385.
[18] I think Ms. Taggart was correct to look to Parsons to pit the propensity of the accused against the propensity of Mark Agar and Ricky Nelson. However, the problem is that Mr. Broderick had no prior convictions which showed a propensity to knowingly import drugs. A possession of drugs conviction does not imply a propensity to traffic or import.
[19] There was a conviction for possession for the purpose of trafficking on Mr. Broderick’s criminal record but it was entered in 2019. The offence date must have been subsequent to the 2012 offence date in the matter at hand.
[21] If it is a sound methodology to come to a propensity conclusion based on a subsequent act, which I am willing to assume for the purpose of argument, at the very least this process greatly attenuates the strength of the resulting inference.
[22] Justice Binnie said in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908:
35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic
.…
(i) Proximity in Time of the Similar Acts
122 Lapse of time opens up a greater possibility of character reform or "maturing out" personality change, and would tend to undermine the premise of continuity of character or disposition.
[23] Building on these comments, reasoning that a subsequent act reveals a propensity that can be extended back in time is premised on a dubious proposition. The propensity apparent from the subsequent act must be found to have existed at the time of the events particularized in the indictment. While Mr. Broderick might have trafficked recently, that does not mean he had the propensity 6 years previous to do so. The intervening circumstances cannot be known and have the effect of substantially diminishing the power of the conclusion sought to be drawn by the Crown.
Conclusions
[24] In the final analysis, although I have more than mild suspicions with respect to Mr. Broderick’s guilt in this case based on all the evidence, the beyond a reasonable doubt standard requires much more than this. The fact that the bag found to contain the cocaine was lost for a period of two days, as attested to by the Westjet form, the accused and buttressed by evidence of his phone calls to Westjet and the St. Lucia airport, was an insurmountable obstacle to the Crown satisfying its burden.
[25] The alternative inference that someone, perhaps in league with Ricky Nelson and Mark Agar and perhaps not, secured the bag when it arrived in St. Lucia, built the secret compartment and secreted the cocaine, is a reasonable one: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The relatively small proportionate weight gain attributable to the cocaine would not have led anyone to notice the difference. Furthermore, Mark Agar was in a good position to retrieve the drugs from the bag upon Mr. Broderick’s return.
[26] It was for these reasons that Mr. Broderick was found not guilty of the importing charge against him.
